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October 27, 2021

Gov’t adopts Emergency ordinance on the enforcement of technical surveillance warrants ordered in criminal proceedings

The government adopted in a special sitting on Friday the Emergency Ordinance on the enforcement of technical surveillance warrants ordered in criminal proceedings, Justice Minister Raluca Pruna announced.

According to the new piece of legislation, the prosecutors and criminal investigation bodies will be the only competent for enforcing the technical surveillance warrants issued during criminal investigations, using directly and independently the infrastructure of the Romanian Intelligence Service (SRI).

JusMin Pruna announced that the ordinance adopted by the government amends four legislative acts: the Criminal Procedure Code, the Judicial Organization Law, the Statutes of the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT) and the SRI Statutes.

“In the first place we changed Article 142 Para.1 of the Criminal Procedure Code, to render it consistent with the Constitutional Court’s decision, we also modified Para. 2 of the same article to clarify the way warrant enforcement activities are carried out, and added a new paragraph to state that the prosecutor, criminal investigation bodies or police experts (…) directly use technical systems and appropriate procedures to ensure the integrity and confidentiality of the collected data and information,” explained the Justice Minister.

In connection with the amendment of Law No. 304 on judicial organization, minister Pruna said that judicial control was instated on the implementation of technical surveillance measures.

“The officials responsible for carrying out the judicial control are the chairman of the High Court of Cassation and Justice or a judge appointed especially to this purpose. The manner whereby the judicial control is exerted will be set forth in the regulations on the organization and administrative operation of the Supreme Court. A second amendment to Law No. 304/2004 refers to the possibility to authorize the Public Prosecution Office to hold and use appropriate means for obtaining, verifying, processing, storing and tracking down information concerning the crimes that fall under the competence of prosecution offices,” Raluca Pruna continued.

She also said that the ordinance creates the possibility for the Public Prosecution Office to operate by the secondment of officers or judicial police agents acting under the direct management and control of the prosecutors, in a bid to mirror the operating scheme currently applied at the National Anticorruption Directorate (DNA).

Law No. 508/2004 on the establishment, organization and operation of DIICOT as part of the Public Prosecution Office is the third amended legislative act.

“The operated change is in the same direction – to create the possibility to second to DIICOT officers or judiciary police agents acting under the direct management and control of the Directorate prosecutors,” the minister added.

The fourth amended act is Law No. 14/1992 on the organization and operation of SRI, to the effect that the National Center for the Interception of Communications – which is responsible under the law for obtaining, processing and storing information related to national security – “ensures the direct and distinct access of these bodies to the technical systems for carrying out the technical surveillance provided for under the Criminal Procedure Code.”

“I insist on these two words, ‘direct’, on the one hand, and ‘distinct’ on the other hand. Direct – because this is what the Court’s Decision No. 51/2016 requires us to ensure, that the access to those criminal investigation bodies – in other words human intervention – be exclusively by criminal prosecution bodies, this is what direct access is about; we also talk about distinct access because (…), as you know, SRI is competent in matters of national security warrants and it’s in this regard that there must be a distinct access, therefore there are two distinct flows for the two types of warrants,” the JusMin detailed.

Raluca Pruna added that another amendment to Law No. 14/1992 refers to the article which provides that “SRI authorities cannot carry out criminal investigations, cannot instruct the remand or pre-trial arrest measure, nor have detention space of their own.”

“In considering the aforementioned amendment to the Criminal Procedure Code, we stated that by exception to this rule, SRI authorities can be designated as special criminal investigation bodies in the meaning expressly referred to by Art. 55 Para. 5 and 6 of the Criminal Procedure Code, for the enforcement of technical surveillance warrants (…). What we actually did was to transpose into law the reference or the requirement to (…) ensure continuity for national security warrants strictly related to Title 10 of the Criminal Code and the crime of terrorism,” said Minister Pruna.

The GEO provides for the secondment to DIICOT of 40 officers or judicial police agents; under a resolution passed by the government on Friday, 40 officers or judicial police agents can also be seconded to each the Public Prosecution Office and the DNA.

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